United States v. Tichenor

• Citation: 12 F. 415
• Parties: UNITED STATES v. TICHENOR and others.
• Decision Date: 05 June 1882
• Court: U.S. District Court — District of Oregon

12 F. 415

UNITED STATES v. TICHENOR and others.

United States Circuit Court, D. Oregon.

June 5, 1882

[Copyrighted Material Omitted]

Rufus Mallory, for plaintiff.

William Strong, for defendants.

Edward W. McGraw filed a brief for defendants.

Before SAWYER, C.J. and DEADY, D.J.

DEADY D.J.

This suit was commenced on August 25, 1880, against the defendants William Tichenor and Elizabeth, his wife, to set aside and cancel the patent issued to said defendants on February 5 1866, for the donation claim No. 37, the same, as alleged being parts of sections 32 and 33 in township 32 S., of range 15 W., of the Wallamet meridian, and situate in Curry county, Oregon, so far as the same includes a certain 'military reservation;' or that the defendants be declared the trustees thereof for the plaintiff, and required to convey the same to it. On April 13, 1881, a supplemental bill was filed, in which the death of the defendant Elizabeth Tichenor was alleged, and by which her children, Jacob B. Tichenor, Anna Dart, and Sarah E. McGraw, and the husbands of the two latter, George Dart and Edward W. McGraw, were made defendants in the suit. The bill alleges--

That in July, 1851, the defendant William Tichenor settled upon said donation No. 37 under the donation act of September 27, 1850, and immediately laid out a town thereon, which he called Port Orford; that in September, 1851, Lieut. Wyman, of the United States army, with the consent of William Tichenor, erected some buildings upon a portion of said town site for the use of the United States soldiers when stationed at that point; 'that on October 16, 1851, Gen. Hitchcock, then in command of the United States troops stationed at that place, ordered that a military reservation be established there, and that a tract of land be selected and set apart and reserved for that purpose;' that soon after, and in pursuance of said order, said Wyman 'caused a tract of land to be marked out for and as a military reserve,' including the buildings aforesaid, and bounded, so far as it was within the lines of said donation, as follows: 'Beginning where the east line of Redwood street in said town of Port Orford prolonged strikes the south line of Tichenor's claim; thence along said prolonged line and its continuation, the east side of Redwood street, to the south-east corner of Redwood street and Third street; thence along the south side of Third street and said side continued until it strikes the west line of Tichenor's claim, thence along said line in a southerly direction to the south-west corner of Tichenor's claim; thence along the south line of Tichenor's claim to the point of beginning,'-- of which acts said William Tichenor had notice and consented thereto, and that about March 17, 1852, said 'military reservation was duly published;' that said William Tichenor and Elizabeth, his wife, released the premises 'to the department quartermaster general for the use of the United States,' and thereafter, on October 24, 1852, in order the more fully and certainly to secure the same to the United States, said defendants 'released and quitclaimed to the United States all right or interest' in the premises, and 'abandoned the same to the United States;' that on September 11, 1854, 'the president of the United States formally declared a reservation for light-house purposes, at said Port Orford, that included said portion of the reservation as well as other lands not within the limits of said donation;' that about September 29, 1856, said William Tichenor made the proof of his four years' residence and cultivation upon the donation claim aforesaid, as required by said donation act, before the officers of the proper land-office, and 'fraudulently' included therein so much of the reservation aforesaid as fell within the lines of his donation, 'whereas, in truth and in fact, he had not so resided upon, cultivated, or claimed' the same 'as part of his donation' after 'the said military reservation was marked out;' that 'by means of said false proof' said William Tichenor 'induced the officers of the United States,' on February 5, 1866, to issue a patent for the whole of said donation, including the tract so reserved, to himself and wife-- the north half of the former and the south half of the latter; that the portion of said reservation included in said patent lies within the wife's half of the donation, and the said patent was so far procured by said William Tichenor 'in fraud of the rights of the United States.'

The bill then proceeds with a sort of a restatement of the case upon 'information and belief,' to the effect that after said reservation was marked out, said William Tichenor surrendered all control of the portion within his donation to the United States; that afterwards said William Tichenor was appointed collector of customs at the port of Port Orford, before which time the troops had been withdrawn from said place and the reservation left in charge of an agent of the United States; that by permission of the United States he occupied one of the buildings on said reservation as collector aforesaid, but afterwards made a claim to the same as against the United States, whereupon he was removed therefrom and the premises again placed in the charge of an agent; that in October, 1864, said William Tichenor and others drove said agent 'away from said premises by force,' and they were arrested therefor 'by the military authorities of the United States' and imprisoned in Fort Alcatraz 'for a considerable time;' that upon being released from said imprisonment said William Tichenor 'pledged his word of honor that he would not interfere with or in any manner lay claim to the said reservation,' but notwithstanding such pledge 'he afterwards laid claim to said land and made final proof of residence and cultivation thereof, as hereinbefore stated, and so fraudulently and wrongfully procured the patent therefor, as herein stated. The defendants demur to the bill, and for cause of demurrer say--

(1) The court has no jurisdiction because the plaintiff has an adequate remedy at law; (2) the plaintiff is not entitled to the relief asked upon the case stated; (3) the bill is multifarious; (4) it is without equity, in this: (a) The boundaries and extent of the alleged reservation are not given with any certainty or exactness, nor does it appear that it included the premises in controversy; (b) it does not appear that it was made for a 'fort,' nor that it does not exceed 20 acres in extent, but the contrary; (c) the reservation does not appear to have been made on public lands, nor that it was made under the authority of the president; (d) no facts constituting the alleged fraud on the part of the defendant William Tichenor are stated; (e) the alleged reservation is void, as appears from the bill; and (f) that Elizabeth did not execute a legal conveyance of the premises to the plaintiff.

There are no maps or diagrams of the locality of the Tichenor donation or the alleged reservation attached to the bill, and the description of the premises contained in it conveys no definite or certain information as to their location or quantity, unless reference is had to the public surveys. Authenticated copies of these and of the patent to the Tichenors, with a copy of the proofs upon which it issued, and the official survey of the donation No. 37 thereto attached, were submitted by counsel for the plaintiff on the argument of the demurrer, and the facts contained in them will be referred to and considered as a part of the bill, or as official acts of the executive department of the government within the judicial knowledge of the court.

And first, the bill is incorrect in describing the donation No. 37; in effect, as being only parts of sections 32 and 33 of township 31 south, of range 15 west. From the surveys it appears that said donation comprises 404.14 acres in said sections 32 and 33, and also 237.20 acres in sections 4 and 5 of township 33 south, of the same range; and that the premises in controversy in this suit lie wholly in the south-west quarter of said section 5, and probably contain not to exceed 20 acres, while the remainder of the reservation marked out as alleged in the bill lies immediately to the westward of the Tichenor donation, and taken altogether contains over 200 acres.

The allegation that the defendant, William Tichenor, after his release from Alcatraz in 1864, made final proof of his residence and cultivation on the donation No. 37, is also erroneous as appears from the bill itself and the documents submitted therewith, said final proof having been made some eight years before that date.

On an extract from 'the surveyor general's map of Oregon,' at sundry points on the line of the coast, of which Port Orford is one, certain circular-shaped tracts, containing no specified quantity, were surrounded with a blue shading, and on September 11, 1854, the president indorsed thereon: 'Let the tracts shaded blue on the within diagram be reserved for light-house purposes.

(Signed) 'FRANKLIN PIERCE.'

On September 15, 1854, this diagram was sent by the commissioner of the general land-office to the surveyor general of Oregon with a letter informing him that the president 'has directed the reservation of a sufficient quantity of land at each point for light-house purposes, as follows: * * *, at Cape Orford or north cape of Tichenor bay;' and instructed him 'to cause the same to be noted on the maps and documents' of his office, so that they would not be overlooked when the surveys of the public lands should be extended to these points; and added: 'The light-house board has promised to furnish this office with descriptions of the exact locations, when made, and copies thereof will be forwarded to...